HomeMy WebLinkAboutResolution - 2009-R0049 - Promissory Note - American State Bank - 02/12/2009Resolution No. 2009-R0049
February 12, 2009
Item No. 5.3
RESOLUTION
WHEREAS, pursuant to that certain Corporate Resolution of the Lubbock
economic Development Alliance, Inc. ("LEDA"), dated January 26, 2009, the Board of
Directors of LEDA authorized the execution and delivery of a Promissory Note (the
"Note"), in the original principle sum of $500,000.00, payable to the order of American
State Bank;
WHEREAS, pursuant to article 5190.6 of the Texas Revised Civil Statutes (Tex.
Rev. Civ. Stat. Ann. art. 5190.6 (Vernon Supp. 2007)) (herein called "article 5190.6"), all
programs and expenditures of LEDA must be approved by the City of Lubbock;
WHEREAS, the Note, and/or drawing under same, constitutes an expenditure by
LEDA subject to the approval by the City;
WHEREAS, pursuant to article 5190.6, notwithstanding the approval of the City
Council of the City of Lubbock, the indebtedness created by the Note remains an
obligation of LEDA and is not an obligation of the City of Lubbock;
WHEREAS, the City Council of the City of Lubbock, Texas, finds it be in the
best interest of the citizens of the City of Lubbock to approve the Note executed by
LEDA.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
LUBBOCK:
The City Council of the City of Lubbock hereby approves the execution and
delivery by LEDA to American State Bank of that certain Promissory Note, dated on/or
about January 27, 2009, and all documents executed in connection therewith (the
"Related Documents"), said Note and Related Documents being attached to, and
incorporated in, this Resolution as Exhibit "A".
Vxecuted this 12th day of February , 2009.
e.- �1— Z%r
Z�
TOM MARTIN, MAYOR
TTEST:
APPROVED AS TO CONTENT:
nay tiurcrlam
hief Financial Officer
APPROVED AS TO
na G. Vandiver
City Attorney
1-.EDA-Txable Loan Agmt020309.res
I-ebruary 3. 2009
Resolution No. 2009—R0049
UNSEC
PROMISSORY NOTE RE: 2011009126121
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Borrower: LUBBOCK ECONOMIC DEVELOPMENT ALLIANCE, Lender: American State Bank
INC, LENDING DIVISION
1301 BROADWAY, SUiTE 200 1401 AVENUE Q
LUBBOCK, TX 79408 PO BOX 1401
LUBBOCK. TX 78408.1401
Principal Amount: 0500,000.00 Date of Note: January 27, 2009
PROMISE TO PAY. LUBBOCK ECONOMIC DEVELOPMENT ALLIANCE, INC. ('Borrower') promises to pay to American Stats Bank ('Lander"), or
order, In lawful money of the United States of America, the principal amount of Five Hundred Thousand 6 001100 Dollen (0500,000.00) or so
much as may be outstanding, together with Interest on the unpaid outstanding principal balance of each advance. Interest shall be calculated
from the date of each advance untg repayment of each advance or maturity, whichever occurs first.
CHOICE OF USURY CEILING AND INTEREST RATE. The Interest rate on this Note has been Implemented under the 'Guarterly Calling' as
referred to in Section 303.006 of the Texas Finance Code. The terms, Including the rate, or Index, formula, or provision of low used to compute
the rate on the Note, will be subject to revision as to current and future balances, from tine to time by notice from Lander In compliance with
Section 303.103 of the Texas Finance Code.
PAYMENT. Borrower will pay this ban In one payment of all outstanding principal plus s9 accrued unpa)d Interest on January 27, 2010. In
addition, Borrower will pay regular monthly payments of all accrued unpaid interest due as of each payment date, beginning February 27, 2009,
with all subsequent Interest payments to be due on the same day of each month after that. Unless otherwise agreed or required by applicable
law, payments will be applied first to any accrued unpaid Interest; then to principal; then to any unpaid collection costs; and than to any late
charges. Borrower will pay Lender at Lender's address shown above or at such other plata as Lender may designate In writing.
Notwithstanding any other provision of this Note, Lender will not charge Interest on any undisbursed ban proceeds. No scheduled payment,
whether of principal or Interest or both, will be due unless sufficient ban funds have been disbursed by the scheduled payment dela to Justify
the payment.
VARIABLE INTEREST RATE. The interest rate on this Note is subject to change from time to time based on changes in an Index which Is the
AMERICAN STATE BANK, BASE RATE AS IT MAY EXIST AND CHANGE FROM TIME TO 71ME (the 'Index'). The Index Is not necessarily the
lowest rete charged by Lender on its loans and Is not by Lender In Its sole discretion. If the Index becomes unavailable during the term of this
loan, Lender may designate a substitute Index after notifying Borrower. Lender will tell Borrower the current Index rote upon Borrower's
request. The Interest rate change will not occur more often then each DAY. Borrower understands that Lender may make loans based on other
ratea as well. The Index currently Is 4.000% per annum. The Interest rote to be applied prior to maturity to the unpaid principal balance of this
Note will be calculated as described in the "INTEREST CALCULATION METHOD' paragraph using a rate of 0.600 percentage points under the
Index, resulting In an Initial rate of 3.500% per annum based on a year of 380 days. NOTICE: Under no circumstances will the Interest rate on
this Note be mors than (except for any higher default rate or Post Maturity Rate shown below) the looser of 18.000% per annum or the
maximum rate allowed by applicable law. For purposes of this Nota, the 'maximum rate allowed by applicable law" means the greater of iA)
the maximum rete of Interest permitted under federal or other law applicable 10 the Indebtedness evidenced by this Note, or (B) the 'Quarterly
Ceiling" as referred to In Section 303.008 of the Texas Finance Code.
INTEREST CALCULATION METHOD. Interest on this Nota is computed on a 3861360 basis; that b, by applying the ratio of the Interest rate
over a year of 380 days, multiplied by the outstanding principal balance, multiplied by the actual number of days this principal balance Is
outstanding, unless such calculation would result In a usurious rate. In which case interest shall be calculated on a per dlsm basis of a year of
365 or 388 days, as the case may be. All Interest payable under this Note to computed using this method.
PREPAYMENT. Borrower may pay without penalty all or a portion of the amount owed earlier than it is duo. Prepayment in full shall consist of
payment of the remaining unpaid principal balance together with all accrued and unpaid Interest and all other amounts, costs and expenses for
which Borrower Is responsible under this Note or any other agreement with Lender pertaining to this loon, and in no event will Borrower ever be
required to pay any unearned Interest. Early payments will not, uniesa agreed to by Lander in writing, relieve Borrower of Borrower's obligation
to continue to make payments of accrued unpaid Interest. Rather, early payments will reduce the principal balance due. Borrower agrees not to
sand Lender payments marked "paid In full', "without recourse', or similar language. If Borrower sends such a payment, Lender may accept It
without losing any of Lender's rights under this Note, and Borrower will remain obligated to pay any further amount owed to Lender. All written
eommunicetlons concerning disputed amounts, Including any check or other payment Instrument that Indicates that the payment constitutes
'payment In full" of the amount owed or that is tendered with other conditions or limitations or as full satisfaction of a disputed amount must be
mailed or delivered to: American State Bank, LENDING DIVISION, 1401 AVENUE 0, PO BOX 1401, LUBBOCK, TX 79408-1401.
LATE CHARGE. If a payment Is 10 days or more late, Borrower will be charged 5.000% of the regularly scheduled payment or 0100.00,
whichever is lass.
POST MATURITY RATE. The Post Maturity Rate on this Note Is the lesser of (A) the maximum rate allowed by law or IB) 18.000% per
annum based on a year of 360 days. Borrower will pay Interest on all sums due after final maturity, whether by acceleration or otherwise, at
that rate.
DEFAULT. Each of the following shall constitute an event of default ("Event of Dafault") under this Note:
Payment Default. Borrower falls to make any payment when due under this Note.
Other Defaults. Borrower fails to comply with or to perform any other term, obligation, covenant or condition contained In this Note or In
any of the related documents or to comply with or to perform any term, obligation, covenant or condition contained In any other agreement
between Lender and Borrower.
False Statements. Any warranty, representation or statement made or furnished to Lender by Borrower or on Borrower's behalf under this
Note or the related documents Is false or misleading In any material respect, either now or at the time made or furnished or becomes false
or misleading at any time thereafter.
Insolvency. The dissolution or termination of Borrower's existence as a going business, the insolvency of Borrower, the appointment of a
receiver for any part of Borrower's property, any assignment for the benefit of creditors, any type of creditor workout, or the
commencement of any proceeding under any bankruptcv or Insolvency laws by or against Borrower.
Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture proceedings, whether by judicial proceeding, self-help,
repossession or any other method, by any creditor of Borrower or by any governmental agency against any collateral securing the loan.
This Includes a garnishment of any of Borrower's accounts, Including deposit accounts, with Lender. However, this Event of Default shall
not apply If there Is a good faith dispute by Borrower as to the validity or reasonableness of the claim which Is the basis of the creditor or
forfeiture proceeding and if Borrower gives Lender written notice of the creditor or forfeiture proceeding and deposits with Lander monles or
a surety bond for the creditor or forfeiture proceeding, in an amount determined by Lander, In Its sole discretion, as being an adequate
reserve or bond for the dispute.
Events Affecting Guarantor. Any of the preceding events occurs with respect to any guarantor, endorser, surety, or accommodation party
of any of the Indebtedness or any guarantor, endorsor, surety, or accommodation party dies or becomes Incompetent, or revokes or
disputes the validity of, or liability under, any guaranty of the Indebtedness evidenced by this Note.
Change In Ownership. Any change In ownership of twenty-five percent (25%) or more of the common stock of Borrower.
Adverse Change. A material adverse change occurs In Borrower's financial condition, or Lander believes the prospect of payment or
performance of this Note Is Impaired.
Insecurity. Lander in good faith believes itself Insecure.
Cure Provisions. If any default, other than a default In payment Is curable, it may be cured if Borrower, after receiving written notice from
Lander demanding cure of such default: (1) cures the default within tan (101 days; or (2) If the cure requires more than ten 1101 days,
Immediately Initietas steps which Lender deems In Lender's sole discretion to be sufficient to cure the default and thereafter continues and
completes all reasonable and necessary steps sufficient to produce compliance as soon as reasonably practical.
LENDER'S RIGHTS. Upon default, Lender may declare the entire Indebtedness, Including the unpaid principal balance under this Note, all
accrued unpaid interest, and all other amounts, costs and expenses for which Borrower Is responsible under this Note or any other agreement
with Lender pertaining to this loan, immediately due, without notice, and then Borrower will pay that amount.
PROMISSORY NOTE
Loan No: 2011009126 (Continued) Page 2
ATTORNEYS' FEES; EXPENSES. Lender may hire an attorney to help collect this Note if Borrower does not pay, and Borrower will pay Lender's
reasonable attorneys' fees. Borrower also will pay Lender all other amounts Lander actually incurs as court costs, lawful fees for filing,
recording, releasing to any public office any Instrument securing this Note; the reasonable cost actually expended for repossessing, storing,
preparing for sale, and selling any security; and fees for noting a lion on or transferring a certificate of title to any motor vehicle offered as
security for this Note, or premiums or Identifiable charges received in connection with the sale of authorized insurance.
GOVERNING LAW. This Note will be governed by federal law applicable to Lender and, to the extent not preempted by federal law, the laws of
the State of Texas without regard to its conflicts of law provisions. This Note has been accepted by Lender In the State of Texas.
DISHONORED CHECK CHARGE. Borrower will pay a procesaing fee of 425.00 If any check given by Borrower to Lender as a payment on this
loan is dishonored.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff In all Borrower's accounts with Lender (whether
checking, savings, or some other account). This Includes all accounts Borrower holds jointly with someone also and all accounts Borrower may
open in the future. However, this does not include any IRA or Keogh accounts, or any trust accounts for which setoff would be prohibited by
law. Borrower authorizes Lender, to the extent permitted by applicable law, to charge or setoff all sums owing on the debt against any and all
such accounts.
COLLATERAL. This loan is unsecured.
LINE OF CREDIT. This Note evidences a revolving line of credit. Advances under this Note may be requested orally by Borrower or as provided
in this paragraph. Lender may, but need not, require that all oral requests be confirmed In writing. All communications, Instructions, or
directions by telephone or otherwise to Lander are to be directed to Lender's office shown above. The following person or persons are
authorized to request advances and authorize payments under the line of credit until Lender receives from Borrower, at Lender's address shown
above, written notice of revocation of such authority: JANA JOHNSTON; and GARY LAWRENCE. Borrower agrees to be liable for all sums
either: (A) advanced in accordance with the instructions of an authorized person or IBI credited to any of Borrower's accounts with Lender.
The unpaid principal balance owing on this Note at any time may be evidenced by endorsements on this Note or by Lender's Internal records,
including daily computer print-outs. Lender will have no obligation to advance funds under this Note if: (A) Borrower or any guarantor is in
default under the terms of this Note or any agreement that Borrower or any guarantor has with Lender, including any agreement made In
connection with the signing of this Note; IB) Borrower or any guarantor ceases doing business or is insolvent; (C) any guarantor seeks, claims
or otherwise attempts to limit, modify or revoke such guarantor's guarantee of this Note or any other loan with Lender; (D) Borrower has
applied funds provided pursuant to this Note for purposes other then those authorized by Lender; or IE) Lender In good faith believes itself
insecure. This revolving line of credit shall not be subject to Ch. 346 of the Texas Finance Code.
RENEWAL AND EXTENSION. This Note Is given in renewal and extension and riot in novation of the following described indebtedness: the
Promissory Note from LUBBOCK ECONOMIC DEVELOPEMENT ALLIANCE, INC. to AMERICAN STATE BANK dated JANUARY 12, 2008 In the
original principal amount of 8500,000.00.
REPAYMENT PROVISION. Notwithstanding any other provision contained herein, neither the State of Texas nor the City of Lubbock, Texas,
shall be obligated to pay the Indebtedness herein Incurred or any interest thereon and that neither the faith and credit nor the taxing power of
either the State of Texas or the City of Lubbock, Texas, Is pledged to the payment of the principal of or the Interest on such Indebtedness. The
source of funds for the repayment of the Indebtedness shall be limited to 1.1 the proceeds of the sell of bonds issued by Lubbock Economic
Development Alliance, Inc., ("LEDA"), 2.) revenues realized from the lease or sale of any project or realized from a loan made by LEDA to
finance or refinance a project, and/or 3.) revenues from a contract with the City of Lubbock. under Section 380.002 of the Local Government
Code.
CROSS DEFAULT PROVISION. It Is expressly agreed that tin additional event of default under this Note shall be: any default made In the
punctual payment of that certain Floating Rate Promissory Note dated August 23, 2007 In the original amount of 87,250,000.00, payable to
PlainsCapital Bank, Lubbock, Texas (6PCB Note6), or any default In the performance of any covenant or agreement contained In the PCB Note or
any related Loan Documents.
SUCCESSOR INTERESTS. The terms of this Note shall be binding upon Borrower, and upon Borrower's heirs, personal representatives,
successors and assigns, and shall inure to the benefit of Lender and its successors and assigns.
GENERAL PROVISIONS. if any part of this Note cannot be onforced, this fact will not affect the rest of the Note. Borrower does not agree or
Intend to pay, and Lender does not agree or Intend to conteact for, charge, collect, take, reserve or receive (collectively referred to herein as
"charge or collect"), any amount in the nature of interest or in the nature of a fee for this loan, which would In any way or event (Including
demand, prepayment, or acceleration) cause Lender to charge or collect more for this loan than the maximum Lender would be permitted to
charge or collect by federal law or the law of the State of Texas (as applicable). Any such excess Interest or unauthorized fee shall, Instead of
anything stated to the contrary, be applied first to reduce the principal balance of this loan, and when the principal has been paid in full, be
refunded to Borrower. The right to accelerate maturity of sums due under this Note does not Include the right to accelerate any Interest which
has not otherwise accrued on the date of such acceleration, and Lender does not Intend to charge or collect any unearned Interest in the event
of acceleration. All sums paid or agreed to be paid to Lender for the use, forbearance or detention of sums due hereunder shall, to the extent
permitted by applicable law, be amortized, prorated, allocated and spread throughout the full term of the loan evidenced by this Note until
payment in full so that the rate or amount of Interest on account of the loan evidenced hereby does not exceed the applicable usury ceiling.
Lender may delay or forgo enforcing any of Its rights or remedies under this Note without losing them. Borrower and any other person who
signs, guarantees or endorses this Note, to the extent allowed by low, waive presentment, demand for payment, notice of dishonor, notice of
intent to accelerate the maturity of this Note, and notice of acceleration of the maturity of this Note. Upon any change in the terms of this Note,
and unless otherwise expressly stated in writing, no parry who signs this Note, whether as maker, guarantor, accommodation maker or
endorser, shall be released from liability. All such parties agree that Lender may renew or extend (repeatedly and for any length of time) this
loan or release any party or guarantor or collateral; or impair, fall to realize upon or perfect Lender's security Interest In the collateral without the
consent of or notice to anyone. All such parties also agree that Lender may modify this loan without the consent of or notice to anyone other
than the party with whom the modification is made. The obligations under this Note are joint and several.
PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS NOTE, INCLUDING THE VARIABLE
INTEREST RATE PROVISIONS. BORROWER AGREES TO THE TERMS OF THE NOTE.
BORROWER ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY NOTE.
BORROWER:
LUBBOCK ECONOMIC DEVELOPMENT ALLIANCE, INC.
By
S 0 of LUBBOCK0M1
EV LOPM ALLIANCE, INC.
By: A 1
O ofB C CO OM C
DEVELOPMENT ALLIANCE, INC.
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Resolution No. 2009—R0049
DISBURSEMENT REQUEST AND AUTHORIZATION
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References in the boxes above are for Lender's use only and do not limit the applicability of this document to any particular loan or item.
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Borrower: LUBBOCK ECONOMIC DEVELOPMENT ALLIANCE, Lender: American State Bank
INC. LENDING DIVISION
1301 BROADWAY, SUITE 200 1401 AVENUE Q
LUBBOCK,TX 79408 PO BOX 1401
LUBBOCK, TX 79408-1401
LOAN TYPE. This is a non precomputed Variable Rate Nondlsclosabie Revolving Line of Credit Loan to a Corporation for $500,000.00 due on
January 27, 2010. This is an unsecured renewal loan.
PRIMARY PURPOSE OF LOAN. The primary purpose of this I.3an Is for:
❑ Personal, Family or Household Purposes.
❑ Personal Investment.
IN Business, Agricultural and All Other.
SPECIFIC PURPOSE. The specific purpose of this loan Is: BLOC FOR WORKING CAPITAL RENEWAL(PAID INT).
DISBURSEMENT INSTRUCTIONS. Borrower understands that no loan proceeds will be disbursed until all of Lender's conditions for making the
loan have been satisfied. Please disburse the loan proceeds of $500,000.00 as follows:
Undisbursed Funds: $500,000.00
Amount paid on Borrower's account: $
Note Principal: $500,000.00
FINANCIAL CONDITION. BY SIGNING THIS AUTHORIZATION, BORROWER REPRESENTS AND WARRANTS TO LENDER THAT THE
INFORMATION PROVIDED ABOVE IS TRUE AND CORRECT AND THAT THERE HAS BEEN NO MATERIAL ADVERSE CHANGE IN BORROWER'S
FINANCIAL CONDITION AS DISCLOSED IN BORROWER'S MOST RECENT FINANCIAL STATEMENT TO LENDER. THIS AUTHORIZATION IS
DATED JANUARY 27, 2009.
BORROWER:
LUBBOCK ECONOMIC DEVELOPMENT ALLIANCE, INC.
By:
JXNX JOHNSTON,/CFO of LUBBOCK ECONOMIC
LOPMEN IANCE, INC.
v
By:
-GARX_J�j�RENCE, CEO of LUBBOCK ECONOMIC
DEVELOPMENT ALLIANCE, INC.
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Resolution No. 2009—R0049
NOTICE OF FINAL AGREEMENT
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boxes above are for Lender's use only and do not limit the applicability of this document to any particular loan or item.
Any item above containing ”' • I" has been omitted due to text length limitations.
Borrower: LUBBOCK ECONOMIC DEVELOPMENT ALLIANCE, Lender: American State Bank
INC. LENDING DIVISION
1301 BROADWAY, SUITE 200 1401 AVENUE tl
LUBBOCK, TX 79408 PO BOX 1401
LUBBOCK. TX 79408-1401
THE WRITTEN LOAN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
As used In this Notice, the following terms have the following meanings:
Loan. The term "Loan" means the following described loan: a non-precomputed Variable Rate Nondisciosable Revolving Iina of Credit
Loan to a Corporation for $600,000.00 due on January 27, 2010. This Is an unsecured renewal loan.
Loan Agreement. The term "Loan Agreement" means one or more promises, promissory notes, agreements, undertakings, security
agreements, deeds of trust or other documents, or Commitments, or any combination of those actions or documents, relating to the
Loan, Including without limitation the following:
LOAN DOCUMENTS
Corporate Resolution: LUBBOCK ECONOMIC DEVELOPMENT Promissory Note
ALLIANCE, INC. Disbursement Request and Authorization
Notice of Final Agreement NOTICE OF PRIVACY POLICY: LUBBOCK ECONOMIC
DEVELOPMENT ALLIANCE, INC.
Parties. The term "Parties" means American State flank and any and all entities or individuals who are obligated to repay the loan
or have pledged property as security for the Loan, including without limitation the following:
Borrower: LUBBOCK ECONOMIC DEVELOPMENT ALLIANCE, INC.
This Notice of Final Agreement is given by American State Bank pursuant to Section 28.02 of the Texas Business and Commerce Code. Each
Party who signs below, other than American State Batik, acknowledges, represents, and warrants to American State Bank that It has
received, read and understood this Notice of Final Agreement. This Notice is dated January 27, 2009.
BORROWER:
LUBBOCK 6CON L DEV LOPM • T ALLIANCE, INC.
By.
jJAfjA JOHNF0,N, CFO of LUBBOCK ECONOMIC
D ELOPM T LLIANCE, INC.
%7-7LENDER:
AMERICA
N STATE BANK
X
Authorized Signer
By:
GARY .L-AWRENOE,C O o U BOCK ECONOMIC
DEVELOPMENT ALLIANCE, INC.
U111 MO Lr Wg. V.. 1.41.00.001 C,1=. H.Amd fk..W 90.0.c b,. 11/7,1001. AS RON lM,",N. • TI! OAAMW FAANOWPUKUe.IC TA1. IN 141OC